Robinson v. The Chefs' Warehouse

Filing 145

ORDER by Judge Kandis A. Westmore regarding 139 , 140 10/23/17 Joint Discovery Letter Brief. (kawlc1, COURT STAFF) (Filed on 11/13/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SHAON ROBINSON, et al.
Plaintiffs,

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v.

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THE CHEFS' WAREHOUSE, et al.,

ORDER REGARDING 10/23/17 JOINT
LETTER RE: REQUESTS FOR
PRODUCTION OF DOCUMENTS
Re: Dkt. No. 139 & 140

Defendants.

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United States District Court
Northern District of California

Case No. 3:15-cv-05421-RS (KAW)

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On October 23, 2017, the parties filed a joint letter concerning Plaintiffs’ first set of

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requests for production of documents. (Joint Letter, Dkt. No. 139.) Specifically, the letter pertains

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to Request Nos. 45, 46, 55, and 55 to the extent that they seek email communications pertaining to

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meal and rest periods and overtime claims. Id. On August 16, 2017, Plaintiffs deposed

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Defendants’ 30(b)(6) witness, Carlos Rivera, who testified that emails discussing overtime and

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meal and rest breaks existed. (Joint Letter at 1.) Now, Plaintiffs seek to compel responsive emails.

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Id. at 2.

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The Court notes that the parties previously filed a joint letter regarding this same discovery

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device on January 3, 2017, but these requests were not at issue when that letter was filed. (Joint

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Letter at 3.) As a result, Defendants argue that Plaintiffs waived their right to bring this joint

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letter. Id. While it appears that emails were discussed generally in November 2016, Mr. Rivera’s

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deposition was taken in August 2017, where the emails were discussed in more detail. As such,

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nothing precludes Plaintiffs from seeking emails regarding topics covered in the deposition.

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Moreover, the Court notes that electronically-stored information (“ESI”) may warrant phased

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discovery.

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During the meet and confer process, Plaintiffs agreed to certain search terms—including

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“meal,” “meals,” “lunch,” “lunches,” “rest,” and “break”—and to limit the search to or from

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Defendants’ California employees and emails to or from Defendants’ employees who are

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responsible for wage and hour compliance in California even if they are not physically located in

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California. Id. Defendants have agreed to produce responsive emails on the condition that the

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parties agree upon a list of custodians and a list of “reasonable/manageable search terms.” (Joint

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Letter at 4.) Defendants ask that the search terms be limited to emails that also contain the term

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“driver” and at least one of the following: “policy,” “procedure,” or “practice.” Id. While the use

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of the term “driver” is likely reasonable, the inclusion of one of the other three terms is

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unreasonably restrictive, particularly given that Defendants have not attempted to perform any
searches using Plaintiffs’ terms, such that the undersigned is unable to assess how difficult a

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United States District Court
Northern District of California

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search would be to perform based on Plaintiffs’ proposed parameters.
Even so, Defendants’ proposal of identifying custodians is reasonable and necessary to

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comport with Rule 26’s proportionality requirement. (See Joint Letter at 4.) The undersigned

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suspects that identifying and agreeing upon custodians, including Mr. Rivera, and then utilizing

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Boolean searches—including truncated terms such as “meal” and “lunch”— would result in

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identifying those ESI documents most likely to be relevant to the pending litigation. Swanson v.

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ALZA Corp., No. 12-cv-04579-PJH-KAW, 2013 WL 5538908, at *4 (N.D. Cal. Oct. 7, 2013)

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(citing POM Wonderful LLC v. The Coca-Cola Co., 2009 WL 7047720, at *1 (C.D. Cal. Nov. 10,

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2009)).
Accordingly, the parties are ordered to meet and confer regarding how to best conduct the

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discovery of electronically-stored information, and are directed to the Northern District’s

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Guidelines for the Discovery of Electronically Stored Information. To the extent that the parties

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require technical expertise, they are directed to Guideline 2.05, and should consider involving “E-

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Discovery Liaisons” to assist with formulating a proper search.

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In the event that the parties’ meet and confer efforts fail to fully resolve this dispute, they

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shall file a joint letter not to exceed five pages, which shall include their respective ESI discovery

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proposals and the relevant legal authority.

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IT IS SO ORDERED.
Dated: November 13, 2017
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KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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